HYN

[2020] NSWCATGD 91

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

HYN [2020] NSWCATGD 91

Hearing dates:

14 December 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Guardianship Division

Before:

K Ransome, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
E A Pickering, General Member (Community)

Decision:

1. A guardianship order is made for HYN.

2. DAN of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 14 December 2020.

4. This order will not be reviewed at the end of the above period.

5. This is a limited guardianship order giving the guardian(s) custody of HYN to the extent necessary to carry out the functions below.

FUNCTIONS:

6. The guardian has the following functions:

a) Accommodation

To decide where HYN may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take HYN to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Services

To make decisions about services to be provided to HYN.

CONDITION:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring HYN to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person inpatient in hospital – subject person with dementia – high level of carer stress – subject person unwilling to move to aged care – need for an ACAT assessment – need for accommodation decisions for admission to an aged care facility – need for others to bring accommodation decisions into effect – suitability of proposed guardian – private guardian appointed – twelve month non-reviewable order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 17(1)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

HYN (the person)
Sydney Local Health District (applicant)
JZN (carer, spouse)
DAN (joined party, other non-party)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2020/00334733

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

1. HYN is 74 years old and was admitted to a public hospital on 27 October 2020 after she presented to the hospital with shortness of breath, tightness in the chest and pulmonary oedema in the context of missed medication. She is reported to have dementia and prior to her admission to hospital was living at home with her husband, JZN, who was her carer.

2. The Tribunal received an application from Ms Z, Social Worker, at the public hospital, seeking the appointment of a guardian for HYN. It was stated that this appointment is necessary as HYN is adamant that she return home but lacks the capacity to understand that she requires a level of high care which cannot be met by her husband or services in the home. It was stated that a guardian needs to be appointed to ensure she receives appropriate care. The application proposed that HYN’s son, DAN, be appointed as her guardian.

3. For the reasons which follow, we have made this appointment.

The hearing

4. The hearing was held on 14 December 2020. At the end of these Reasons for Decision is a list of the participants in the hearing. An interpreter in the Italian language assisted at the hearing.

The guardianship application

5. The questions which we had to decide were:

1. Is HYN someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

2. Should the Tribunal make a guardianship order and if so, what order should be made?

3. Who should be the guardian and how long should the order last?

Is HYN someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

6. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that they are “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing [their] person”: the Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age,

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

5. and by virtue of that fact is restricted in one or more major life activities to such an extent that they require supervision or social habilitation: the Act, s 3(2).

7. Dr Y, Geriatrician, at the public hospital, states that HYN has a range of physical medical conditions including respiratory problems, Type II diabetes, chronic kidney disease, obesity, hypertension, osteoporosis and atrial fibrillation. During her current admission to hospital, which was prompted by her husband ceasing to give her diuretic medication at home due to her increased need for urination, HYN underwent repeat cognitive testing. She scored 17/30 on the RUDAS scale with significant difficulties with short-term memory. She also demonstrated significant lack of insight into her care needs. She states that HYN displays cognitive impairment consistent with dementia with impaired insight. She notes that her care needs are significant with limited mobility and assistance required for toileting, personal care and all instrumental activities of daily living.

8. Ms X, Occupational Therapist, at the public hospital, states that HYN requires assistance mobilising and with transfers. She is occasionally incontinent and needs assistance with toileting. During her hospitalisation, HYN was refusing to shower and needs help with dressing. She also requires assistance to manage her medications. Ms X reports that testing shows that HYN has cognitive deficits in the areas of problem-solving, insight and memory recall.

9. HYN told us that she wanted to go home and said she doesn’t need any assistance at the moment. She said that her husband is at home and he could help her if she needed it. It was apparent that she has a little insight into the extent of her care needs and the ability of those around her to provide the required assistance.

10. On the basis of the evidence of the professionals involved in HYN’s care outlined above, which we accept, along with our own observations of her, we were satisfied that she has a disability, namely dementia, such that she is unable to make important life decisions for herself. We were therefore satisfied that a guardianship order could be made for HYN.

Should the Tribunal make a guardianship order?

11. While we are satisfied that HYN is someone for whom we could make a guardianship order, we must still decide whether in fact an order should be made. When exercising our discretion to make a guardianship order we needed to consider the views of HYN and those of her family. We were also required to consider the importance of preserving her existing family relationships and her particular cultural and linguistic environments along with the practicability of services being provided to her without the need for the making an order: the Act, s 14(2).

12. The matters in s 14(2) of the Act have no hierarchy or weighting and each is a mandatory consideration. However, we must undertake a balancing exercise in our consideration of the matters in s 14(2) of the Act. When undertaking this task we may be guided by the principles that are set out in s 4 of the Act.

13. Dr Y states that JZN can no longer care for his wife at home and, in her opinion, prior to his wife’s current admission to hospital was suffering significant carer stress. Both JZN and HYN have refused services in the past and HYN has rejected an ACAT assessment stating that she wants to return home. Dr Y stated that HYN’s care needs are very high and, although she is currently medically stable, is not safe to be discharged to home.

14. JZN told us that it was very difficult for him to look after his wife. DAN said that both he and his father were open to HYN entering an aged care facility as she needs full-time care. He said that his mother is unable to remember what they have talked about and insists upon going home.

15. HYN requires a level of assistance which cannot be provided by her family alone. We accepted that there are decisions that are required to be made in relation to her accommodation and any services that may be provided to her, including an ACAT assessment.

16. Having carefully considered the matters in s 14(2) of the Act and guided by the principles set out in s 4 of that Act, we were satisfied that it was appropriate for a guardianship order to be made. We decided the appointed guardian should have the functions of accommodation and services.

17. We were also asked to include an additional function that would enable the appointed guardian to authorise police and/or ambulance services to take HYN to accommodation, to keep her there and return her to that place should she leave it. We were satisfied that this additional function was necessary and in HYN’s interests given her clearly stated wish to return home despite the views of all involved in her care that it would be unsafe for her to do so.

Who should be the guardian and for how long?

18. It was proposed that DAN be appointed as guardian for his mother. We have to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

19. In deciding whether a person is able to undertake the role of guardian, we must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act.

20. We were satisfied that DAN would act in HYN’s best interests and that he is close to his mother. His appointment as guardian was supported by his father. We were satisfied that there is no conflict of interest between the interests of HYN and her son. We were also satisfied that he would be able to properly and appropriately exercise his functions, including in dealing with HYN’s objections to any new accommodation.

21. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We decided to make an order for 12 months during which time matters in relation to HYN’s accommodation in particular can be decided. We do not at this stage foresee any ongoing need for the order once matters are settled. The order will therefore not be automatically reviewed by the Tribunal.

Witnesses

22. The following people appeared before the Tribunal to give evidence:

• HYN, the person

• Ms Z, applicant and Social Worker, at the public hospital

• JZN, husband and carer

• DAN, son

• Dr Y, Geriatrician, at the public hospital

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 03 May 2022